Although Florida courts are split on whether Florida Statute § 768.0755 (2010), Premises Liability for Transitory Foreign Substances in a Business Establishment, is retroactive or prospective, the Florida Supreme Court of Florida recently reviewed another similar statute’s retroactivity, as applied in American Optical Co. v. Spiewak, No. SC08-1616, 2011 WL 2652189, (Fla. 2011) upholding Williams v. American Optical Co., 985 So. 2d 23 (4th DCA 2008). This ruling makes it very unlikely that § 768.0755 will apply to cases filed before July 1, 2010.
Since being enacted effective July 1, 2010, Florida state and federal courts have not consistently ruled whether § 768.0755 is retroactive as to incidents that occurred before July 1, 2010. Notably, § 768.0755 returns the state of slip-and-fall cases back to their pre-Owens status, in that plaintiffs again have to plead and prove that a defendant had actual or constructive knowledge of the foreign transitory substance. Thus far, the only reported precedent on this specific issue comes from Florida federal court cases (two in the Northern District of Florida, one in the Southern district, and a conflicting case in the Middle District of Florida) and various circuit court orders throughout Florida (which are also split).
To determine whether a statute is retroactive, courts analyze the legislative intent and the nature of the statute:
It is a well established rule of statutory construction that, in the absence of an express legislative statement to the contrary, an enactment that affects substantive rights or creates new obligations or liabilities is presumed to apply prospectively. However, a statute that is procedural in nature does not share the same presumption and may be applied retroactively. Substantive law prescribes rights and duties, while procedural law concerns the means and methods to enforce those rights and duties. Further, if a statute creates new legal obligations or attaches new legal consequences to events completed before its enactment, the courts will not apply the statute to pending cases, absent clear legislative intent favoring retroactive application.
The Florida legislature did not indicate clear intent for the statute to apply retroactively, providing only that “this act shall take effect on July 1, 2010.” Thus, there is a presumption that this matter is retroactive, with the follow-up analysis becoming: whether the statute is substantive or procedural.
The Northern District of Florida, in Yates v. Wal-Mart Stores, Inc., No. 5:10-cv-226/RS-GRJ, 2010 WL 4318795, (N.D. Fla. 2010), found this statute to be procedural because the statute that it overturned, Florida Statute § 766.01710, was titled “Burden of Proof” and statutes affecting the burden of proof are deemed procedural: “A substantive law creates, defines, and regulates rights as opposed to procedural or remedial law which prescribes a method of enforcing the rights or obtaining redress for their invasion . . . . Burden of proof requirements are procedural in nature.”
However, the Southern District, Middle District, and other Floridatrial courts have taken the position that the statute cannot be applied retroactively based upon the reasoning in Williams, reasoning that has now been upheld by American Optical.
Williams held that a recent statute that required plaintiffs in asbestos cases to prove that any malignancy or physical impairment they suffered resulted from their exposure to asbestos, could not be applied retroactively. Williams involved the “Florida Asbestos and Silica Compensation Fairness Act” (Fl. Stat. § 774.201-09 (2005)), which became effective in 2005. The key provision at issue in Williams states that a plaintiff – – to bring an action for damages – – has to plead and prove an existing malignancy or actual physical impairment for which asbestos exposure was a substantial contributing factor. Under the previous standard, a plaintiff only needed to show that “they had suffered an injury from an asbestos-related disease.” More specifically, the Fourth District in Williams noted that there were essentially three levels of analysis to determine whether a lawsuit had vested into a right: (1) not all of the elements of a cause of action have occurred, and thus, the right to that cause of action is a mere expectation and has not vested); (2) all of the elements of a cause of action have already occurred, but there is no judgment (the issue in Williams) and (3) there is a monetary judgment, which is clearly vested right. Williams went on to hold that the second situation – – even if the legislature is clear that the statute is meant to be retroactive – – is unconstitutional, finding that a cause of action based upon a fulfillment of each element, is a vested right.
Here, regarding § 768.0755, plaintiffs’ counsel and some courts have taken the position that “constructive notice” is a new element akin to Williams’ Asbestos Statute, requiring pleading and proving that injuries stem from asbestos: plaintiffs must now plead and prove actual or constructive knowledge on the part of the defendant. Interestingly, Williams contradicted a case from the Third District concerning whether an asbestos statute is retroactive; in that case, Daimler-Chrysler, the Court held changing an element did not affect a plaintiff’s substantive right, stating “Plaintiff was merely pursing a common law tort theory to recover damages” and that such a pursuant was not a “vested right” because the right was not yet fixed.
However, the issue is now largely clarified, as the Florida Supreme Court has upheld Williams holding that having a valid cause of action is a vested right and that if adding a new element to a cause of action impairs a party’s ability to proceed with their lawsuit, then said cause of action is unconstitutional if applied retroactively. In other words, the Supreme Court has held if a party held valid cause of action, that cause of action cannot be impaired by subsequent legislation. Logically, if Florida Statute § 768.0755 (2010), Premises Liability for Transitory Foreign Substances in a Business Establishment, is applied retroactively, plaintiffs who had a cause of action, may no longer have a cause of action, if they cannot prove that a premise owner had actual or constructive knowledge. Thus, § 768.0755 cannot be applied retroactively.
Since Williams is confirmed, courts will rely on the Florida Supreme Court’s guidance – – especially since Federal Court’s have already looked to the analysis in Williams. Thus, although § 768.0755 is a welcome change, to pre-Owens jurisprudence, it will likely not apply to cases filed before July 1, 2010.